Role of Public Interest Litigation in Protection of Child against Exploitation in the Context of Labour: An Analysis

I. Introduction

Public interest litigation or PIL emerged in the late seventies out of a need to make the courts directly accessible to the common man. It was introduced with the aim of providing relief to persons or a determinate class of persons upon whom a legal wrong or injury had been caused and who were unable to redress their grievances in a court of law due to certain socio-economic disadvantages. The essential feature of public interest litigation is that the focal point of the litigation is not the parties, but larger public interest is involved with this type of litigation. Public interest litigation transcends beyond the litigating parties. Through such public interest litigations, not only have the rights of the poor and the disadvantaged been vindicated and timely constitutional and legal relief been provided, but also a very broad and liberal interpretation has been given to the provisions of laws. It is now established that a writ petition may be moved by not only an aggrieved individual, but also by a public spirited individual and social action group, if a larger public interest is involved. The extra ordinary jurisdiction was evolved in S.P. Gupta vs. Union of India.² The Court defined it comprehensively to apply to any case of public injury arising from the breach of any public duty and violation of some provisions of the Constitution or the law.

The cases relating to child labour should be considered as a distinct category, which is separate from other public interest litigations. There are two reasons for this. Most of the children on whose behalf petitions are filed suffer from the socio economic disabilities, which were identified by the Courts in the early public interest litigations. Moreover, the children cannot litigate for themselves because of their tender age. Therefore, they have to rely on others for defending their rights. Keeping in view the pitiable conditions of the child workers, the apex court has shown its generosity by relaxing the concept of locus standi. As the working children generally come from the poor families, the Courts had to change its attitude, so that the grievances of poor people can be properly ventilated. Thus, the concept of locus standi was liberalised, so that the courts become easily accessible.

II. Concept of Locus Standi

The issue of locus standi has arisen in a number of cases before the Supreme Court.³ The Supreme Court has held that where a legal wrong or injury is caused to a person or to a determinate class of persons, who are unable to approach the Court for relief, because of poverty, helplessness or disability, then any member of the public can file an application for an appropriate direction or writ or order.⁴

In People’s Union for Democratic Rights vs. Union of India⁵, commonly known as Asiad Case, the Supreme Court entertained a letter, sent by post as public interest litigation. This case has not only made significant contribution to labour laws, but also has displayed the creative attitude of judges to protect the interests of the child workers.

In Labourers Working on Salal Hydro Project vs. State of Jammu and Kashmir & others⁶, a letter was sent by the People’s Union for Democratic Rights. It was addressed to Mr. Justice A. Desai, enclosing a copy of the news report published in the Indian Express, dated August 26, 1982, where it was written that a large number of migrant workmen from different states, including the State of Orissa were working on the Salal Hydroelectric Project in different conditions.

In District Beedi Workers’ Union vs. State of Tamil Nadu⁷ also, a letter petition, which was received from the District Beedi Workers’ Union of Tirunelveli of the State of Tamil Nadu, was treated as an application under Article 32 of the Constitution. In this way, the court has widened the scope of the concept of locus standi, so that public spirited persons or organisations also can file suits on behalf of the children and fight for the cause of children in the court. The court has widened the scope of the concept of locus standi, so that public spirited persons or organisations also can file suits on behalf of the children and fight for the cause of children in the court. Rights of the child labour have been guaranteed by the Constitution and some other laws like Factories Act, 1948, Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and Child Labour (Prohibition and Regulation) Act, 1986. The Supreme Court has shown its eagerness in the implementation of these laws.

In People’s Union for Democratic Rights and others vs. Union of India⁸, the writ petition was filed in order to ensure observance of the provisions of various labour laws, in relation to workmen employed in the construction work of various projects connected with the Asian Games. The Court has given a new dimension to several areas such as locus standi, public interest litigation, and enforcement of labour laws, minimum wages and employment of children. The facts of the case were that the People’s Union for Democratic Rights sent a letter to the Supreme Court annexing a report regarding the conditions under which the workmen engaged in various a said Projects were working. The Report was prepared by a team of three social scientists who were commissioned by the People’s Union for Democratic Rights. In that report it was pointed out that there was violation of Article 24 of the Constitution and the provisions of the Employment of Children Act, 1938. The case of the Union of India, the Delhi administration and Delhi Development Authority was that no complaint in regard to the violation of the provisions of that Act was at any time received by them and they disputed that there was any violation of these provisions by the contractors. It was also contended on behalf of these authorities that the Employment of Children Act, 1938 was not applicable in case employment in the construction work of these projects, since construction industry is not a process specified in the Schedule of the Act.

While agreeing with the contention of the respondents that construction industry does not find a place in the Schedule to the Employment of Children Act, 1938 and the prohibition enacted in Section 3(3) against the employment of a child who has not completed his fourteenth year cannot apply to employment in construction industry, the Court opined that it is a sad and deplorable omission. Therefore, it must be immediately set right by every State Government, by amending the Schedule so as to include construction industry in it, in exercise of the power conferred under Sec 3-A of the Employment of Children Act, 1938. The Court expressed the hope that every state government would take necessary steps in this behalf without any undue delay, because construction work was clearly a hazardous occupation and it was absolutely essential that the employment of children under the age of 14 years must be prohibited in every type of construction work. That would be in consonance with Convention No. 59 adopted by International Labour Organisation and ratified by India.

Article 24 of the Constitution has prohibited the employment of children in any factory, mine or any other hazardous employment. The Court held that the construction work being plainly and indubitably a hazardous employment, it is clear that by reason of this constitutional prohibition, no child below the age of 14 years can be allowed to be employed in construction work. There can, therefore, be no doubt that notwithstanding the absence of specification of construction industry in the Schedule to the Employment of Children Act, 1938, no child below the age of 14 years can be employed in construction work and the Union of India and every state government must ensure that this constitutional mandate is not violated in any part of the country. It is significant that judiciary, for the first time, in this case accepted that the construction industry is a hazardous industry. It has led to the inclusion of construction industry in the schedule of the Child Labour (Prohibition and Regulation) Act, 1986.

The judiciary in this case has opined that the Constitution of India has prohibited the employment of children less than 14 years in hazardous industries. Therefore, even though construction industry has not been mentioned as a hazardous industry in the Employment of Children Act, 1938, a child below 14 years cannot be employed in this sector, as construction industry is ‘plainly and indubitably’ hazardous in nature. It can be interpreted from this that even if a particular work is not mentioned in any Act as hazardous industry, if it is hazardous in nature, then child labour can be prohibited in that work and action may be taken against the employer for violation of constitutional prohibition under Article 24.

III. Extended scope of right to life

The courts sufficiently broadened the horizon of right to life and personal liberty by creating new dimensions to Article 21. It 1s not merely confined to physical existence but it includes within its ambit right to life with human and decency. ⁹Human dignity an important aspect of the right to life guaranteed under Article 21.

In Francis corals Mullin vs. Administration Union Territory of Delhi¹⁰ the Supreme Court observed that the right to 1ife includes the right to live with human dignity and all that goes along with it Here one should understand that the child labourers are firstly children and then labourers As such they should not be treated cruelly and Inhumanly.

The apex Court in LK Pandey Vs Union of India ¹¹has observed that the welfare of the entire community its growth and development depends upon the health and well being of its children and that children need special protection because of their tender age and physique mental immaturity and incapacity to look after them.

In Bandhua Mukti Morcha vs. Union of India and others,¹²a petition was filed under Article 32 of the Constitution by a bonded labour organisation invoking the Employment of Children Act, 1938 and Article 24 of the Constitution. The petition stated that carpet manufacturers in Mirzapur were employing children. Admitting the, petition, the Supreme Court appointed a Commissioner, to submit d report on the state of child labour in the carpet industry in the Mirzapur Bhadhoi belt. The Commissioner, in addition to the thirty children mentioned in the original petition, found another 114 children in the forced custody of the loom owners. These children were then released through the office of the district magistrate on 16.4.8. As the loom owners refused to co-operate, the District Magistrate had to conduct raids on the premises with the help of the police. The Commissioner also visited 42 villages in the area with 884 looms and found that 42 per cent of the total work force engaged in those looms was children below the age of fourteen years. The total number o f such children was 369. 95 of them were between the ages of six and eleven years and most of them were from Scheduled Castes and Scheduled Tribe communities. The Commissioner was unable to ensure the release of these 369 children. As, many children were being taken away from District Mirzapur to avoid the investigation, the Supreme Court extended the jurisdiction of the Commissioner, so that investigation could be properly made. When the Supreme Court issued notice to the State of Bihar in September, 1984, the Deputy Director of Social Security informed the Court that all the confined, kidnapped children were identified and released by the District Magistrate under the Bonded Labour System (Abolition) Act, 1976. The police later filed two criminal cases in the matter, against those who were offending under the Act

In its order, the Court expressed its regret that the Government of Uttar Pradesh had flouted the earlier direction of the Court and said that it would give the state another opportunity to implement the directions. The Court also noted that the State of Uttar Pradesh had not yet responded with the lists of children employed or with a scheme for their rehabilitation.

In Labourers Working on Salal Hydro Project vs. State of Jammu & Kashmir and others¹³. a letter sent by the People’s Union for Democratic Rights was treated as writ petition. In the letter, a copy of the news report published in the Indian Express was enclosed. There it was written that a large number of migrant workmen from different states were working on the Salal Hydroelectric project in difficult conditions. The contractors to whom different portions of the work were entrusted by the central government subjected these workers to exploitation. Pursuant to the order made by the Court, the Labour Commissioner visited the site of Salal Hydroelectric Project. In his final report he pointed out that some minors were found to have been employed on the project site, but it was explained that these minors accompanied male members of their families on their own and insisted on getting employed.

The Court observed that so long as there is poverty and destitution in this country, it would be difficult to eradicate child labour. But even so an attempt has to be made to reduce, if not eliminate, the incidence of child labour, because it is absolutely essential that a child should be able to receive proper education, with a view to equipping itself to become a useful member of the society and to play a constructive role in the socio-economic development of the country.

From this judgement, it can be understood that the Court has realised that so long as poverty and destitution are there in this country, complete elimination of child labour will not be possible. Therefore, the government should try to regulate child labour and take steps to provide education to them.

In District Beedi Workers’ Union vs. State of Tamil Nadu¹⁴, a letter petition received from the District Beedi Workers’ Union of Tirunelveli in the State of Tamil Nadu was treated as an application under Article 32 of the Constitution and the notice was issued initially to the state, later to other beedi manufacturing units within the state. In the letter complaint was made about non-payment of appropriate dues for work taken, failure to implement the provisions of the labour laws and prevalence of contract labour systems. The Supreme Court directed in this Case that the labour laws as also the Beedi and Cigar Workers’ (Conditions of Employment) Act should be strictly enforced so that the workers get their legitimate dues and the conditions of employment improve. It also opined that tobacco manufacturing is hazardous to health and therefore, child labour in this trade should be prohibited as far as possible. Employment of child labour should be stopped either immediately or in a phased manner. The Court also held that in view of the health hazard involved in the manufacturing process, every worker including children, if employed, should be insured for a minimum amount of Rupees 50,000 and the premium should be paid by the employer and the incidence should not be passed on to the workmen.

Section 24 of the Beedi and Cigar Workers Act has prohibited the employment of children, but in this judgement, the court opined that in tobacco manufacturing, child labour should be prohibited as far as possible. So, instead of total prohibition as provided by the Act, the Court has indirectly allowed the employment of children. Moreover, as the Court in this case had accepted tobacco manufacturing as hazardous, constitutional prohibition on employment of children below 14 years under Article 24 is also applicable in this matter. So, in no case, the question of employment of children in this sector should arise.

Instead of using lenient words like ‘as far as possible’, the Court should have pointed out the employers as well as the government about their constitutional and legal obligations regarding the prohibition of child labour.

In M.C. Mehta vs. State of Tamil Nadu (1991) ¹⁵the petition under Article 32 of the constitution was brought before the Supreme Court by way of public interest litigation and was connected with the problem of employment of children in Match Factories of Sivakasi in Kamaraj District of Tamil Nadu State.

The Court held that the working conditions in the match factories involved health hazards in normal course. Apart from the special risk involved in the process of manufacturing, the adverse effect on health was a serious problem. Exposure of tender aged to these hazards required special attention.

The Court also held that employment of children within the match factories directly connected with the manufacturing process up to final production of matchsticks or fireworks should not at all be permitted. Children could be employed in the process of packing, but packing should be done in an area away from place of manufacture to avoid exposure to accident. The Court opined that compulsory insurance scheme should be provided for both adult and child employees taking into consideration the hazardous nature of employment. The State of Tamil Nadu should ensure that every employee, working in these match factories, is insured for a sum of Rs. 50,000 and the Insurance Corporation, if contacted, should come forward with a viable group insurance scheme to cover the employees in the match factories in Sivakasi area. The premium for the group insurance policy should be the liability of the employer to meet as a condition of service.

In this case, the Court held that the children can be employed in the process of packing, but packing should be done in an area away from the place of manufacture to avoid exposure to accident. It cannot be expected from the employers that they will arrange separate places for child workers. Even if this is done, the chemical which is used in the matchsticks is harmful for the children. Apart from that, as matchsticks cause fire, at any time, there is the possibility of accident, even though the place may be far away from the manufacturing site. Moreover, the Court justified it on the ground that the tender hands of young workers are more suited to sorting out the manufactured produce and processes it for the purposes of packing. The Child Labour (Prohibition and Regulation) Act, 1986 banned the employment of children in manufacturing of matches. Therefore, whatever may be the nature and circumstances of the work, child labour cannot be allowed to be employed in the manufacturing of matches. None, including the Court, can justify this on some flimsy ground like suitability of tender hands in sorting out the manufactured produce and process it for the purposes of packing. The Court is expected to perform the role of protector of law, but in this matter, it has become the violator of law.

In M.C. Mehta vs. State of Tamil Nadu and others (1996)¹⁶, the main cognisance was taken when news about an ‘unfortunate accident’ in one of the Sivakasi cracker factories was published. At the direction of the Court, Tamil Nadu Government filed a detailed counter stating, inter alia, that number of persons who died was 39. The Court gave certain directions regarding the payment of compensation and thought that an Advocates’ Committee should visit the area and makes a comprehensive report relating to the various aspects of the matter.

In the report submitted by the Committee there were many recommendations. It recommended that the State of Tamil Nadu should be directed to ensure that children are not employed in fireworks factories. The children employed in the match factories for packing purposes must work in separate premises for packing. Employers should not be permitted to take work from the children for more than six hours a day. The employers and State Government should provide proper transport facilities for travelling of the children to their work places and back.

A write-up in the Indian Express of 25.10.1996 had described Bhavnagar as another Sivakasi in the making, as that town of about 4 lakh population held at least 13,000 children employed in 300 different industries. The Court opined that the problem of child labour in India had spread its fangs far and wide. The Court held 169 that the offending employer should be asked to pay compensation for every child, employed in contravention of the provisions of the Child Labour (Prohibition and Regulation) Act, 1986, a sum of Rupees 20,000. This sum could be deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare Fund.

The Court directed to withdraw the children who were working in hazardous industries to ensure their education in appropriate institutions. The appropriate government will provide employment to one adult member of the family of the child withdrawn from work and if this is not possible, the government would contribute a sum of Rupees 5000 for each child to the welfare fund.

The government would either provide a job to an adult member of the family in lieu of the child or deposit a sum of Rupees 25,000 in the Child Labour Rehabilitation-cum-Welfare Fund. In case of getting employment for an adult, the parent or guardian shall have to withdraw his child from the job. Even if no employment is provided the parent or guardian cannot allow the child to continue in the employment as an alternative source of income will be provided by the government to them from the fund. In case of the children working in non-hazardous jobs, the inspectors shall have to see that working hours of the child are not more than six hours a day and he or she receives education at least for two hours each day. Entire cost of education will be borne by the employer. In view of the magnitude of the task, the Court directed to create a separate cell in the labour department of the appropriate government. The scheme will be monitored by the Secretary, Department of Labour Government of India. The Court also directed to make a survey for the identification of the working children within six months.

After this judgement of the Supreme Court, detailed guidelines were forwarded to the state governments on 26th December, 1996 indicating the manner in which the directions of the Supreme Court could be given effect to. A conference of the Labour Ministers of the states and union territories was convened. The details of conducting the survey, setting up of the fund and required improvements in the enforcement machinery were worked out. The second conference of the state Labour Ministers was held on the 7th and 8th July, 1997 to review the action taken by the state governments to comply with directions of the Supreme Court. The review revealed that the survey has been completed in most of the states and union territories. A questionnaire was circulated to the Labour Secretaries of all state governments and union territories requesting them to send the feedback of the steps taken by the state governments and union territories to enable the central government to file an affidavit in the Supreme Court. On the basis of information received from the states and union territories, an affidavit dated 5th December, 1997 was filed before the Supreme Court.

In the affidavit, it was stated that the first phase of survey was completed by all the state governments and union territories except in Nagaland. The ministry of labour had sanctioned a sum of Rupees 8 crores for this purpose. The state governments, where employment of child labour in hazardous occupations was found, had already initiated steps for the constitution of the Child Labour Rehabilitation cum-Welfare Funds at the district level. Labour cells had been contributed by the administrations of some states and union territories like Andhra Pradesh, Chandigarh, Dadra and Nagar Haveli, Goa, Haryana and Karnataka to ensure the enforcement of 171 various provisions of the Act. Besides taking action to comply with the directions of Court, the central government has initiated action to amend the Child Labour (Prohibition and Regulation) Act, 1986, to make it more stringent and effective. It was also stated in the affidavit that the central government has identified a number of new occupations and processes like gem cutting, zari making and leather goods manufacturing, for inclusion in the schedule to the Act, so that employment in these additional occupations and processes could be prohibited under Section 3 of the Act.

This is a landmark judgement where the Supreme Court has not only directed the erring employers to pay compensation amounting to Rupees 20,000 for every child appointed in contravention of the Child Labour (Prohibition and Regulation) Act, 1986, but also formation of Child Labour Rehabilitation-cum-Welfare Fund. It is also significant that the Court asked the Secretary, Labour Ministry to inform about the compliance of the directions of the Supreme Court within one year from December 10, 1996.

Apart from these, the Supreme Court has dealt with in detail on various aspects of child labour like causes of child labour, constitutional provisions and international initiatives to combat child labour. From these it can be understood how seriously the problem has been taken by the Supreme Court and what importance it has given to this problem. It was expected that the government would work with the same spirit as it had worked to file the affidavit within one year from the date of judgement in the Supreme Court. Had this been done the conditions of child labour must have improved and the number of child labour would also have gone down to a considerable extent. Unfortunately, this did not happen. There has not been any improvement of the situation. Violation of the rights of the child labour is very often reported in the newspapers. Number of child labour is also regrettably very high.

IV. Right to education

The abolition of exploitation of child labour is preceded by the introduction of compulsory education Compulsory education and child labour law are inter linked When Article 24 bars employment of children below 14 years Article 45 supplements it by specifically laying out that a child below the age of 14 years must be kept occupied in some educational institution

In Re Kerala Education Bill ¹⁷ the Supreme Court held that though the directives given Article 45 regarding the age limit signifies that it is not only confined to primary but, also extends to free education whatever it may be up to the age of 14 years but the Article does not require the government’s obligation to be discharged at the expense of the minority communities.

In Murali Krishna Public School case ¹⁸the Andhra Pradesh high court in its landmark decision has held that Right to education to details a fundamental right and it is mandatory duty of the state to provide adequate opportunities to advance, their educational interests by establishing schools. The decision has paved the way for better educational opportunities for dates. Those who were the most under developed illiterate and ignorant and neglected have now been encouraged to claim their right to education as a fundamental right.

In Anand Varadhan Chandel Vs University of Delhi ¹⁹ the Delhi high court held that education is a fundamental right under our Constitution. The Court observed the Law a therefore now settled that the expression of life and personal liberty m Article 21 of the constitution provided that they are necessary for the full development of the personality of the individual and can be included m the various aspects of the liberty of the individual. The right to education is therefore included in Article 21 of the constitution.

In Maharashtra State Board of Secondary and higher Education Vs KS Gandhi ²⁰ the right to education at the secondary stage was held to be a fundamental right. Another landmark decision was that of Justice Kuldip Singh who has gone one step further while declaring in unequivocal words that the right to education is concomitant to fundamental rights enshrined under Part III of the constitution.²¹

In J P Unnikrishnan Vs State of Andhra Pradedh ²² the Supreme Court has recognized primary education as an aspect of personal liberty and thus elevated it to the level of each child’s constitutional right to education. Supreme Court while dealing with education as a Fundamental Right has emphasized the importance of education by stating that; the fundamental purpose of the education as same at all times and in all places; it is to transfigure the human personality into a pattern of perfection through a synthetic process. Education develops human personality and the sense of its dignity and strength the respect for human rights and fundamental freedoms. Education enables all persons to participate effectively in free society, promotes understanding, tolerance and friendship among all persons –therefore education is a tool to maintain peace, unity and integrity of the nation.

In Mohini Jain vs. State of Karnataka, which is popularly known as the “Capitation Fee Case”, the Supreme Court held that the right to education is a fundamental right under Article 21 of the Constitution, which cannot be denied to a citizen by charging higher fee known as the “Capitation Fee”. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The Court also observed that the right to education is concomitant to the fundamental rights enshrined under Part III of the Constitution.

V. Equal remuneration

The Srirama Babu vs. The chief secretary ²³ The petitioner, by Mr. Ravivarma Kumar and by Ms. Neela Arun in the course of argument disclose that much has not been achieved by the State in the matter of eradication of child labour. The vice is growing day by day into unmanageable proportion. Certainly the Government has no magic wand with which they can do away with the child labour overnight; but certainly it should launch a process by various legislations to discourage the practice of child labour. This Court that there are parents who are willing and who compel a child to go to work. It happens due to sheer economic necessity. If that is so, if the State steps in and extends retarding influence not to employ children, then the practice of child labour may wane out. Otherwise, the practice will stand still perpetuated. Therefore, one of the means to achieve is to examine in this behalf the prospects of fixation of the minimum wages for adults and children equally. If that is enforced properly there will be decrease in child labour and increase in more employment prospects to the rest.

VI. Conclusion

After analysing various decisions delivered by the Supreme Court and the other higher Courts, it can be easily understood that the response given by the Courts to the issues of Children is quiet optimistic. The analysis of the judicial response reveals that compulsory education and fixing equal remuneration are the preceding step to eradicate the exploitation of child labour. The executive authorities are not bothered about illegalities or gaps in the implementation process, for which the judiciary needs to take some immediate actions to curb these problems. It is relevant to mention that the judiciary played a very important role in the protection of child labour against exploitation by entertaining public interest litigations.

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Footnotes

1. Author is a Principal (FAC) at Government Law College, Tirunelveli, India.

2. AIR 1982 SC 149. ↩

3. Fertilizer Corporation Kamgaar Union vs. Union of India, AIR 1981 SC 434. ↩

4. AIR 1980 SC 1622. ↩

5. AIR 1982 SC 1473. ↩

6. AIR 1984 SC 177. ↩

7. (1991) 1 SCC 283. ↩

8. AIR 1473. ↩

9. Maneka Gandhi vs union of india AIR 1978 SC 597 ↩

10. (1981)SCC 618 ↩

11. (1984)2 SCC 244 ↩

12. (1997)10SCC 549 ↩

13. (1984) 3 SCC 538 ↩

14. SCC (1) 221 ↩

15. AIR 1991 SC 147. ↩

16. AIR 1997 SC 699. ↩

17. AIR 1958 SC 1956. ↩

18. Murali Krishna public school vs state of Andhra Pradesh AIR 1986 AP 204. ↩

19. AIR 1978 Delhi 308. ↩

20. (1991) SCC 716. ↩

21. AIR 1992 SC 1858. ↩

22. AIR 1993 SC 2178. ↩

23. (1) Kar. LJ 191. ↩